Hot new idea: What if Obama just ignores Congress on the debt ceiling?

posted at 3:50 pm on June 25, 2011 by Allahpundit

Yeah, why not? That’s perfectly in keeping with Obama’s M.O. when the legislature gets in his way. Can’t get Congress to move on cap and trade? Make the EPA do something. Don’t want to beg Congress to authorize war in Libya? Send in the Air Force and forget about it.

Annoyed that Congress has refused to raise the debt ceiling because you can’t reach a deal on deficit reduction? Just keep selling Treasury securities and apply the proceeds to paying interest on the debt, then dare the House and Senate to do something about it.

[M]embers of Congress have tried before to sue the president for diminishing their legislative and appropriating power and have typically failed. In 1997, for instance, a small group of congressmen sued Office of Management and Budget director Franklin Raines, arguing that the 1996 Line Item Veto Act diluted their voting power as members of Congress. But seven justices of the Supreme Court disagreed, and did so largely by drawing from an earlier opinion written by Justice Antonin Scalia that denied environmental groups standing to challenge the government’s interpretation of the Endangered Species Act. In the majority opinion, then-Chief Justice William Rehnquist wrote that because the congressmen had not shown that their injury was “particularized,” and that the action of the President had not affected the congressmen in a “personal and individual way,” they did not have standing to sue.

In the case of members of Congress suing the current administration over the debt ceiling, the issue of standing would likely fall the same way. Louis Fisher, an expert on the separation of powers who worked at the Congressional Research Service for over twenty five years, wrote in an email that “case law is quite clear that a member of Congress, even if joined by a dozen or two colleagues, cannot get standing in court to contest a constitutional issue.”…

But even if standing could be established and the Obama administration gets taken to court, some legal experts note that an additional argument of surprising strength could be made: The government cannot legally default on its debts. Former Reagan official and maverick conservative budget wonk Bruce Bartlett has suggested as much by invoking Section Four of the Fourteenth Amendment, which says that “The validity of the public debt of the United States, authorized by law … shall not be questioned.” Although there has been little litigation or discussion of this section, it could be read to imply an absolute firewall against statutory limits on paying or devaluing the debt.

Now there’s a campaign platform I’d like to see in time for the 2012 election: “The Constitution lets me run up as much debt as I want and there’s nothing your representatives can do to stop me.” Unchecked executive power and runaway spending — a magical combination. Reminds me of critics of the War Powers Act who claim the statute is unconstitutional because the president has inherent authority under Article II to wage war, especially in cases of national emergency. (Never mind Congress’s power to declare war under Article I.) Supposedly, the argument goes, because defaulting on the debt would also constitute a national emergency, the president has inherent power to prevent that default from occurring. For how long, though, is anyone’s guess under this theory; the War Powers Act tries to balance legislative and executive interests by letting the president respond to a true military emergency for 60 days without needing approval, but under the TNR/Bartlett theory, presumably he could keep piling up debt in perpetuity. Sounds like a plan. I’d be morbidly curious to see the public’s reaction if he tried it. Opposition to raising the debt ceiling is overwhelming — 19/47, according to a Gallup poll taken last month — but another poll taken a few days later showed 56 percent saying that default would be “disastrous” for the economy. If talks with the GOP broke down and he did take emergency action to stave off a default, I bet he could get away with it if he emphasized that it was an emergency stopgap measure until negotiations resume and that he was committed to trillions in spending cuts as part of any deal. Can’t wait.

Here’s Krauthammer paying tribute to yet another example of Obama doing what he wants to do even if you don’t like it. Click the image to watch.

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It’s probably worth pointing out that, if otherwise stymied, Obama could try somehow to attach individual IRA and 401K accounts. I don’t know how he could do it legally without Congressional authorization, but he could probably seize emergency powers to accomplish it somehow.

Which probably explains why he acts so much like Mussolini, who was also defined as a “progressive” back in the 1920s and ’30s, before he went to war against Ethiopia (for reasons he was never able to adequately explain).

Ethipoia ? Libya? Thry’re all the same when you raise your chin him like a messiah to suck in your own self-aggrandizement.

Face it folks, this has NOT been a government of laws for a very long time. Every president since Andrew Jackson has had the ability to ignore rulings of the Supreme Court and whatever statute law they’ve found inconvenient or disagreeable.
This a nation ruled by men! Get over it!

The validity of the public debt of the United States, authorized by law … shall not be questioned

I never understood before why the Congress needed to raise the debt ceiling, but there it is: “authorized by law.” So if Congress doesn’t raise the debt ceiling, it is not authorized by law, and so is not protected by that part of the Constitution.

Ultimately, congressmen cannot sue the President to have the courts force him to do his job. But I do believe there can be a point when Congress could impeach a President for violations of the the laws they have written. Will that ever happen, to this or any other President? Dunno. Doubt it.

As Spring has finally arrived, Californians are cleaning out their garages, planting flowers and getting ready for some fun in the sun. But is it time to break out the flip flops yet? For Senators Boxer and Feinstein it may be.

Congress is gearing up to debate raising the debt ceiling in the coming weeks as the current ceiling of $14.3 trillion will be surpassed by mid-May. Both California senators have not officially announced where they stand on this issue yet, but if they follow the president’s lead they will most likely vote for it.

Boxer has already criticized the House GOP by saying, “I am so tired of the hypocrisy,” due to their opposition to raising the debt ceiling.

This should come to no surprise to any one.

But wait a minute…

Back in 2006 when Congress voted to raise the debt ceiling to $8.9 trillion, Boxer and Feinstein voted AGAINST it.

Feinstein in 2006 ripped the Bush administration by saying, “[The] Administration has chosen to continue down an unsustainable economic path…our nation is going in the wrong direction. The signals grow more evident each day. Deficits are at record levels. The debt is reaching astronomic heights.”

So is it time for the California senators to break out their flip flops? We will see how they eventually vote but I would start dusting them off.
——————————–

The fact that we are here today to debate raising America’s debt limit is a sign of leadership failure. It is a sign that the U.S. Government can’t pay its own bills. It is a sign that we now depend on ongoing financial assistance from foreign countries to finance our Government’s reckless fiscal policies. … Increasing America’s debt weakens us domestically and internationally. Leadership means that “the buck stops here.” Instead, Washington is shifting the burden of bad choices today onto the backs of our children and grandchildren. America has a debt problem and a failure of leadership. Americans deserve better.
(More……………)

Allahpundit, besides the problems you raise, it seems there is also a problem as to how many employees of the Department of the “Treasury” would be willing to go on participating in sales of “securities” other than as clearly permitted under law. There are also demand-side problems: It’s not clear who would buy new “securities” not backed by clear legal authority and at what rate of interest those buyers would be willing to buy. Moreover, it seems all newly issued “securities” would be tainted under such circumstances, even the ones issued merely as vehicles for “rolling over” the debt represented by existing bills, notes, and bonds that come to maturity.

It’s strange to say, but I do wonder whether Timothy Geithner would be willing to continue to serve as Secretary of the “Treasury,” if he were expected to sell “securities” in excess of the amount authorized by law. He is plainly a man who thinks well of himself and of his work.

this actually makes sense to me…O is clearly very willing to play chicken with the Rs over everything, holding the future hostage.

Remember that the Fed is currently buying up most of the Treasuries that are issued…so the demand side is probably not that much of a problem. Besides, the issue is the Sovereign…the debt is issued in the name of the US, not the congress…so the sovereign US stands behind the issuance..so there should not be a buyer problem…except the general problem that eventually buyers will doubt the US’s ability to pay them back.

How amusing to think that Obama might just utterly ignore Congress on the debt. But why not? I am certain 4 SCOTUS justices would think it is ok under the Commerce Clause–after all, money is used in commerce, isn’t it?

Although there has been little litigation or discussion of this section, it could be read to imply an absolute firewall against statutory limits on paying or devaluing the debt.

The Constitution does not set a limit on the amount of debt the US can accumulate (a balanced budget amendment would cure that), but the Executuve branch is prohibited from spending money not appropriated by the Congress. A defacto spending limit, as long as Congress doesn’t appropriate more money…erh..debt.

So Obama can’t spend money that hasn’t been authorized by Congress. If he did, the Supreme Court could not deny standing and would have to rule against it.

Ladys and Gentlmen, that would be the greatest gift to the American people since the wheel was invented.

It’s probably worth pointing out that, if otherwise stymied, Obama could try somehow to attach individual IRA and 401K accounts. I don’t know how he could do it legally without Congressional authorization, but he could probably seize emergency powers to accomplish it somehow.

tom on June 25, 2011 at 6:15 PM

Really trivial for a thug like little Bammie. It could simply be sold as an eminent domain taking. Just as the feddle gummint can take your land if they deem it in the national interest, they can take your savings. Congress would put together a strongly worded letter. Poof.

Why can’t this guy be impeached already for all of the lawless things he is doing to destroy this country? If he ignores us on the debt ceiling, can’t an argument be made that he’s acting like a dictator and in turn be considered a domestic enemy of the United Stated of America and our Constitution?

Ultimately, congressmen cannot sue the President to have the courts force him to do his job. But I do believe there can be a point when Congress could impeach a President for violations of the the laws they have written. Will that ever happen, to this or any other President? Dunno. Doubt it.

TubbyHubby on June 25, 2011 at 6:53 PM

I do believe you are correct at least in regard to Obama. There have been ample grounds for empeachment, but Obama enjoys a race factor, the support of socialist and communist organizations and the certainty of national disrutions, race riots, and union activism if anyone were to try to empeach him. Everyone knows what Obama stands for and what he is intend on doing, the danger to our nation he embodies, yet to act on anything might be worse than to just try and contain as much damage as possible until he is out of office; that is if he accepts removal from office at some future point of time.

Case in point is the long form birth certificate. It was presented as proof that he is legitmately in office. At this current time the flaws that point to its being a forgery are beyond doubt or at best difficult to explain as legitimately present. Anyone that has a few pointers on where to look can see the flaws. Those that have a bit more experience easily prove that the document cannot be legitmate. Yet no member of Congress has or likely will raise the question of its release.

i am reading atlas shrugged for the first time in my life.. and smack in the middle of John Galt’s speech… where rand pours her heart out.. or should i say her mind ?

you know who obama is ? a terrible mixture of the most contemptible head of state (thompson), the most useless legislator who rose by no talent other than political connections (wesley mouch), the most incompetent of men (Jim Taggart, Orren Boyle) and the most jealously destructive of women (lillian rearden)

What America desperately needs are people of true virtue like Hank Rearden, John Galt, Francisco d’Anconia, Dagny Taggart and all the virtuous men of Galt’s Gulch… what it unfortunately has is Obama, Biden,Hillary,pelosi and the rest of the looters and moochers who completely dominate the DemocRAT party and have a presence in the GOP as well

The mighty have truly sunk to a bottomless pit of depravity… Ayn Rand tried so hard to stop America from sinking to this kind of collapse. and she has failed so badly inspite of her heroic efforts…. just like Dagny.

The sad part – there is no John Galt today to speak up against the Thomsons and wesley mouches and jim taggarts of the day.

Jackson never ignored the court. That is a myth if you are referring to Worcestor v Georgia.

AshleyTKing on June 25, 2011 at 11:51 PM

Ashley,
Point taken and conceded. And thank you for adding to my long list of often overlooked reasons to be a little more humble.

I would still maintain however, that there is ample justification for my overall point that the United States has evolved into a government of men rather than of laws, and that the evolution is not recent in its origins. Various individuals and agencies and executives throughout our history have gotten away with ignoring whatever laws they find inconvenient or disagreeable.

Most recently, the issue of illegal immigration would not exist without an almost complete refusal by the Federal Government to enforce current law, and an equally steadfast refuse to allow the states to enforce them as well.

Many other issues, like DOMA and the constant legislating by Agency Fiat, in my estimation bear out the same point.

There is the little matter of how the international bond-rating entities, not to mention China, would look at debt issued by Obama fiat. The effect on Uncle Sam’s FICO score might be just as bad as an outright default.

“The validity of the public debt of the United States, authorized by law … shall not be questioned.”

I guess everyone missed the obvious. Authorized by law. Only the debt interest payments and the debt rotation out of public hands would fall under this “authorized by law” argument. They could not extend the debt beyond what the law authorizes. So, using this as the basis, two things come out:
1) They cannot just stop paying on the debt in order to pay out entitlements instead, thus the idea that Obama can brinkmanship force the congress to pass a debt ceiling increase is not possible, as they are legally required constitutionally to pay those debts. Without question.
2) They cannot issue more debt, because it would not be authorized by law, to pay for anything, even debt interest, that must come from general funds.